TORT 055 Strict Liability The Rule in Rylands v Fletcher and Its Essentials — Law of Torts Notes for Judiciary

Strict Liability: The Rule in Rylands v. Fletcher, Its Four Essentials, and the Foreseeability Requirement Added by Cambridge Water

The rule in Rylands v. Fletcher is the classical instance of liability without fault. A man who brings onto his land and keeps there something likely to do mischief if it escapes must keep it at his peril, and answers for the damage if it gets out, whether or not he was careless. In the case itself nobody had been negligent: the defendant employed apparently competent contractors, and it was they who failed to block the disused shafts they found. The rule rests on the idea that a person who creates an abnormal risk for his own purposes should bear its consequences rather than transfer them to his neighbour. Four essentials must be made out, and since Cambridge Water the type of damage must also have been foreseeable.

The two formulations of the rule, the four essentials, and the foreseeability requirement

1. The Case

📖 Rylands v. Fletcher, (1868) LR 3 HL 330, affirming (1866) LR 1 Ex 265

Facts The defendant, a mill owner, employed independent contractors, who were apparently competent, to construct a reservoir on his land to supply his mill. In the course of the work the contractors came upon disused mine shafts and passages, filled with earth, which communicated with the plaintiff's coal mine on adjoining land. They did not block them. When the reservoir was filled, on 11 December 1860, the water broke through the shafts and flooded the plaintiff's workings. The defendant himself had no knowledge of the shafts and was not personally negligent.

Held The defendant was liable, though neither he nor, on the findings, anyone for whom he was vicariously responsible had been negligent toward the plaintiff.

Ratio Blackburn J in the Exchequer Chamber: "We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." The House of Lords affirmed, Lord Cairns LC adding the limitation that has done most of the work since: the rule applies where the defendant has used his land for a non natural use, introducing onto it that which in its natural condition was not in or upon it. A natural user of land attracts no such liability.

2. The Four Essentials

The essential	What it requires
A dangerous thing	Something likely to do mischief if it escapes. It need not be dangerous in itself: it is enough that it is dangerous if it gets out
Accumulation by the defendant	The defendant must have brought the thing onto his land and kept it there, for his own purposes
Non natural use of the land	A special use bringing with it increased danger to others, and not the ordinary use of the land or such a use as is proper for the general benefit of the community
Escape	The thing must escape from a place where the defendant has occupation or control to a place outside it

3. A Dangerous Thing

The category is wide and is not closed. Water, gas, electricity, fire, explosives, chemicals, sewage, noxious fumes, oil, a flagpole, the sparks from an engine and, in the older cases, a vicious animal and a poisonous yew tree have all been held to fall within it.
The thing need not be dangerous while it is where it belongs. Water in a reservoir is entirely harmless; it is the escape that makes it mischievous.
What matters is the likelihood of mischief on escape, judged by the quantity, the nature and the surroundings.

4. Accumulation

The defendant must have brought the thing onto the land. The rule does not apply to something naturally there: rain that falls, water that percolates naturally, weeds that grow of their own accord, rocks that were always in the hillside.
He must keep it for his own purposes, which is why a thing brought there by a stranger, or deposited by an act of nature, is outside the rule.
The accumulation need not be on land the defendant owns, so long as he has occupation or control of the place where it is kept.
A thing that escapes in the ordinary course of a natural process is treated differently. The distinction between accumulation and natural presence has become difficult in cases of landslip and spreading fire, where the courts have developed a separate duty resting on knowledge of the hazard.

5. Non Natural Use

Treated as natural	Treated as non natural
Water in domestic pipes and cisterns	A large reservoir constructed for an industrial purpose
A fire in a grate for domestic use	A furnace or a kiln maintained for a trade
Ordinary electric wiring in a house	High tension transmission equipment
Trees growing in the ordinary course	A plantation of a poisonous species next to a boundary
Ordinary cultivation and agricultural use	Storage of large quantities of petroleum or chemicals

The test is not whether the use is unusual but whether it brings with it an increased danger to others. The classic gloss is that it must be a special use, and not the ordinary use of the land or such a use as is proper for the general benefit of the community.
So the question is relative to time and place. What is non natural in a residential street may be entirely natural in an industrial estate, and what was non natural in 1868 may be commonplace now.
The requirement is the chief control on the rule, and it is the requirement that has allowed courts to keep it within bounds without abolishing it.
Storage of water for the ordinary supply of a building is natural, which is why the burst cistern cases are decided in negligence and not under the rule.

6. Escape

📖 Read v. J. Lyons and Co. Ltd. [1947] AC 156

Facts The appellant was an inspector of munitions employed by the Ministry of Supply. In the course of her duties she was inside the respondents' filling factory, where high explosive shells were manufactured, when a shell being filled exploded and injured her. No negligence was alleged or proved against the respondents.

Held The respondents were not liable under the rule in Rylands v. Fletcher.

Ratio The rule requires an escape, that is, an escape from a place where the defendant has occupation of or control over land to a place outside his occupation or control. There was no escape here: the explosion occurred inside the factory and the injury was sustained inside it. The decision confirms that the rule is concerned with the relations between occupiers of neighbouring land, and not with dangers to those who come upon the defendant's own premises, whose remedy lies in negligence or in occupiers' liability.

7. Foreseeability After Cambridge Water

📖 Cambridge Water Co. Ltd. v. Eastern Counties Leather plc [1994] 2 AC 264

Facts The respondents had used a chlorinated solvent as a degreasing agent at their tannery since the 1950s. Over many years small quantities were repeatedly spilled onto the concrete floor. The solvent seeped through the floor into the strata below and migrated to a borehole from which the appellant water company extracted water for public supply, about a mile and a half away. The contamination was detected only after European standards for the substance were adopted, and the borehole had to be abandoned. At the time of the spillages nobody could have foreseen that they would produce this result.

Held The respondents were not liable in negligence, in nuisance or under Rylands v. Fletcher.

Ratio Foreseeability of the type of damage is a prerequisite of liability under the rule in Rylands v. Fletcher, as it is in nuisance. The defendant must have recognised, or ought reasonably to have recognised, that what he was doing gave rise to an exceptionally high risk of danger if the thing escaped. On the state of knowledge at the time of the spillages the eventual contamination was not foreseeable. Lord Goff also treated the rule as best regarded as an extension of the law of nuisance to isolated escapes, rather than as an independent tort.

The rule is therefore strict as to fault but not as to remoteness. The defendant answers without negligence, but only for damage of a foreseeable kind.
That is less of a departure than it sounds. In most cases where a dangerous thing escapes, damage of the kind that follows is exactly what made the thing dangerous in the first place, so the requirement is satisfied by the same facts that satisfy the first essential.
The classification of the rule as a species of nuisance affects who may sue: on that view an interest in the land affected is required, which excludes a mere visitor.
Indian courts continue to apply Rylands as an independent rule, and the debate about its relation to nuisance has had less influence here than in England.

⚠ What Rylands actually decided, and what it did not

Rylands v. Fletcher is regularly described as the case that created liability without fault, and that is right so far as it goes. What is less often noticed is how carefully the rule was confined at the moment of its creation. Blackburn J's formulation is restricted to a thing brought onto land for the defendant's own purposes, and it is expressed as making him prima facie answerable, which leaves room for the exceptions that were recognised almost at once. Lord Cairns then added the requirement of non natural user, which in practice decides most modern cases. And Read v. Lyons held that nothing happens under the rule unless the thing gets out. The result is a rule that sounds absolute and operates narrowly, which is precisely why the Supreme Court of India in M.C. Mehta declined to adopt it for hazardous industry and framed a stricter rule of its own.

8. The Position Stated Shortly

1. A person who for his own purposes brings onto his land and keeps there anything likely to do mischief if it escapes must keep it at his peril.

2. He is prima facie answerable for all the damage which is the natural consequence of its escape, whether or not he was negligent.

3. Lord Cairns added in the House of Lords that the rule applies only where the defendant made a non natural use of the land.

4. The four essentials are a dangerous thing, accumulation by the defendant for his own purposes, non natural use, and escape.

5. The thing need not be dangerous in itself; it is enough that it is likely to do mischief if it gets out.

6. The rule does not apply to a thing naturally present on the land, or brought there by a stranger or by an act of nature.

7. Non natural use means a special use bringing increased danger to others, and not the ordinary use of land or a use for the general benefit of the community.

8. Read v. J. Lyons and Co. holds that there is no liability under the rule without an escape from the defendant's occupation or control.

9. Cambridge Water holds that foreseeability of the type of damage is a prerequisite of liability, so the rule is strict as to fault but not as to remoteness.

10. Lord Goff in that case treated the rule as an extension of nuisance to isolated escapes, though Indian courts continue to apply it as an independent rule.